ALJDEC - Licensing

2023A-05236-CHC-ROC · Registrar of Contractors · 2023-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dustin Matz,

COMPLAINANT,

Skill Set, Inc.

DBA: Skill Set Remodeling

License No. ROC 323036,

RESPONDENT.

No. 2023A-05236-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 22, 2023

APPEARANCES: Complainant Dustin Matz appeared on his own behalf. Lisa and Robert Garcia appeared on behalf of Respondent Skill Set, Inc., doing business as Skill Set Remodeling. Arizona Registrar of Contractors Investigator Jack Grimm appeared as a witness. Raul Rocha, Geneva Williams, Esther Sanders, and Cody Curtis appeared as witnesses.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Skill Set, Inc., doing business as Skill Set Remodeling (“Respondent”), is the holder of License Number 323036 issued by the Arizona Registrar of Contractors (“Registrar”). Roberto Damian Garcia Estrada is Respondent’s Qualifying Party and an officer. Lisa Mechelle Garcia is Respondent’s President.

On or about August 25, 2022, Dustin Matz (“Complainant”) contracted with Respondent for Respondent to construct an addition to Complainant’s home. The contract price was $73,250.51.

On or about May 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Jack Grimm. After a May 22, 2023 Jobsite Inspection, at which both parties were present, Investigator Grimm issued a Written Directive to Respondent dated May 30, 2023, that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 30, 2023.

You are directed to remedy the following violations by the appropriate means:

Complaint Item #1: The job is partially finished. Nothing is at a completed state. They took down payment in August 2022, and in April 2022 they stated they would reduce their scope to only finish concrete and framing for the amount of money total I paid them including final payment I gave them in February 2023. Since February, they will work 2-3 hours per day, 1 or 2 days per week, at times not showing up for weeks.

Investigators Observation: Framing is incomplete and not built per plans.

Garage and new laundry room not built per city approved plans. Back patio has not been started yet. Partial of the patio footings are in place and the existing back patio has not been removed or new patio cover built. Plans show parapets walls installed on portions of the existing home as well. No documentation was presented regarding any change orders between parties.

*Complete framing as outlined on city approved plans and get approvals of completion by code enforcement governing authority.

Complaint Item #2: Footings not as detailed: Missing column footing at back patio. Missing footing/stem wall at east garage wall.

Investigators Observation: Footings for the back porch is missing one location. Footing for a portion of the east garage wall is not in place.

*Complete footings as outlined per approved city plans.

Complaint Item #3: Stem wall different sizes around garage wall.

Investigators Observation: Stem wall width on east side is six (6) inches and on the west side is seven (7) inches.

*Correct by appropriate means.

Complaint Item #4: Didn't leave walk door opening in stem wall of garage.

Investigators Observation: Elevated stem wall is in place at the west door opening and was not blocked out for the installation of the door at the interior floor level.

*Correct by appropriate means.

Complaint Item #5: Control joints spaced larger than 10' max as detailed.

Investigators Observation: Control joints in garage floor should not be more than ten (10) feet apart or maximum of 100 sq ft per square. Observed control joints installed greater than ten (10) feet.

*Correct by appropriate means.

Complaint Item #7: Missing sill seal at portion of garage wall corner.

Investigators Observation: Sill seal missing at front south west corner of the garage.

*Correct by appropriate means.

Complaint Item #10: Framing at parapet wall not as detailed. Roof sheathing is sandwiched between parapet and roof joist. 2x4 used at parapet instead of continuing 2x6.

Investigators Observation: Framing is not installed per framing detail on approved plans.

*Complete framing as outlined on plans and/or get approvals of completion by code enforcement governing authority.

Complaint Item #11: Wall and roof sheathing was installed in February (prior to completing framing). Remaining stack of OSB was not covered. OSB has been exposed to elements since February. It's soft and spongey in spots, mushroomed edges, and visible delamination in areas. On April 19 contractor agreed the sheathing condition was unacceptable. Since then, damaged OSB has not been removed or replaced and they proceeded to build a parapet wall on top of sheathing.

Investigators Observation: Unable to determine if the condition of the installed OSB meets the manufacturer’s requirements for protection. Rain and exposure effect the structural integrity of the OSB. One location on the garage roof was shown to have lost its effective strength.

*Correct locations as needed for structural integrity.

Complaint Item #12: Nailing plates don't appear to be installed/nailed correctly. Different alignments and missing nails in holes.

Investigators Observation: Nailing plates should be installed as required by code compliance.

*Complete framing/hardware as outlined on plans and get approvals of completion by code enforcement governing authority.

Complaint Item #13: Anchor bolt placed in doorway has been sheared off but not ground flush. At least one other anchor bolt nut is loose.

Investigators Observation: Anchor bolts need to be installed per city approved plans and code compliance inspector’s recommendations.

*Complete framing/hardware as outlined on plans and get approvals of completion by code enforcement governing authority.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item #6: Questionable concrete quality: cracks and chipped out edges/corners.

Investigators Observation: Garage floor has cracks that did not follow the control joints. Cracks do not meet the standard for repairs and are not larger than 1/8 inch.

Complaint Item #8: Notched sill plate at exterior side at electrical conduit in laundry addition.

Investigators Observation: Notched sill plates are not uncommon for plumbing and conduit. Location may require nailing plate as required by code compliance.

Complaint Item #9: Studs on one wall are 24" on center, not 16" as detailed.

Investigators Observation: This wall is a secondary wall that was installed to accommodate plumbing installed beyond the old exterior stem wall and house wall. Appears acceptable but code compliance may require something different.

All errors in original.

After the expiration of the deadline set forth in the Written Directive, Investigator Grimm contacted Complainant and scheduled a Compliance Inspection.

Investigator Grimm conducted a Compliance Inspection on July 10, 2023, at which both parties were present. Investigator Grimm’s findings are documented in his Compliance Jobsite General Notes as follows:

Compliance Findings:

Investigators Observation: Framing is incomplete and not built per plans.

*Complete framing as outlined on city approved plans and get approvals of completion by code enforcement governing authority.

*INCOMPLETE: Some framing corrective were performed on the garage portion of the project. Regarding garage door header and some parapet work. Framing is incomplete and no code enforcement approval has taken place.

Complaint Item #2: Footings not as detailed: Missing column footing at back patio. Missing footing/stem wall at east garage wall.

Investigators Observation: Footings for the back porch is missing one location. Footing for a portion of the east garage wall is not in place.

*Complete footings as outlined per approved city plans.

*INCOMPLETE: No work performed regarding footings.

Complaint Item #3: Stem wall different sizes around garage wall.

Investigators Observation: Stem wall width on east side is six (6) inches and on the west side is seven (7) inches.

*Correct by appropriate means.

*INCOMPLTE: No corrective work performed.

Complaint Item #4: Didn't leave walk door opening in stem wall of garage.

Investigators Observation: Elevated stem wall is in place at the west door opening and was not blocked out for the installation of the door at the interior floor level.

*Correct by appropriate means.

*INCOMPLTE: No corrective work performed.

Complaint Item #5: Control joints spaced larger than 10' max as detailed.

Investigators Observation: Control joints in garage floor should not be more than ten (10) feet apart or maximum of 100 sq ft per square. Observed control joints installed greater than ten (10) feet.

*Correct by appropriate means.

*INCOMPLTE: No corrective work performed.

Complaint Item #7: Missing sill seal at portion of garage wall corner.

Investigators Observation: Sill seal missing at front south west corner of the garage.

*Correct by appropriate means.

*INCOMPLETE: Sill seal was installed on the front portion of the wall but a location about 6 inches in length is still not in place on the west wall.

Complaint Item #10: Framing at parapet wall not as detailed. Roof sheathing is sandwiched between parapet and roof joist. 2x4 used at parapet instead of continuing 2x6.

Investigators Observation: Framing is not installed per framing detail on approved plans.

*Complete framing as outlined on plans and/or get approvals of completion by code enforcement governing authority.

*INCOMPLETE: Respondent states he did perform some work regarding parapets but the work is not approved by code compliance.

*Correct locations as needed for structural integrity.

*INCOMPLETE: OSB over garage and back room have been removed and not replaced.

Complaint Item #12: Nailing plates don't appear to be installed/nailed correctly. Different alignments and missing nails in holes.

Investigators Observation: Nailing plates should be installed as required by code compliance.

*Complete framing/hardware as outlined on plans and get approvals of completion by code enforcement governing authority.

*INCOMPLETE: Some work regarding nailing plates has been performed but the work is not approved by code compliance.

Complaint Item #13: Anchor bolt placed in doorway has been sheared off but not ground flush. At least one other anchor bolt nut is loose.

Investigators Observation: Anchor bolts need to be installed per city approved plans and code compliance inspector’s recommendations.

*Complete framing/hardware as outlined on plans and get approvals of completion by code enforcement governing authority.

*INCOMPLETE: Some work regarding anchor bolts has been performed but the work is not approved by code compliance.

All errors in original.

Thereafter, Investigator Grimm forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Investigator Grimm testified consistently with his findings contained in his Jobsite Inspection Notes, Written Directive, and Compliance Jobsite General Notes. Investigator Grimm testified that Respondent failed to obtain the necessary approvals from the City for code compliance. Investigator Grimm further testified that Respondent accepted the noted deficiencies at the Jobsite Inspection. Investigator Grimm also testified that Respondent did not indicate in writing any alleged denial of access to the jobsite during the period of the Written Directive, and in fact, some minor corrective work had been performed by Respondent, thereby indicating that there was no denial of access. Respondent’s representative, Lisa Garcia, contacted Investigator Grimm twice, however, one of the calls was after the Written Directive had expired. Investigator Grimm advised Ms. Garcia to document any concerns regarding denial of access in writing. Ms. Garcia did not do so.

Investigator Grimm testified that the City approved plans for the project show a continuous patio and two footings were poured for the patio. Investigator Grimm further testified that Respondent confirmed that a beam pocket for the connection from the laundry room to the patio was part of the parties’ agreement. Investigator Grimm testified that Respondent asserted that that patio is not included in the parties’ contract. Investigator Grimm testified that the contract is not clear as to the scope of the project, however, the patio is contained on the plans for the project and there was “no good document that showed [the patio] was not included.” Further, there were no documents that deleted the patio from the scope of work. Because the patio was on the plans for the project, Investigator Grimm ordered that Respondent complete its scope of work and obtain approval from the City. The permit for the project includes a new patio structure.

Geneva Williams, Complainant’s neighbor, testified that she observed stacked OSB that was not covered, and therefore, not protected from the elements.

Cody Curtis, a contracted Inspector for the City of Phoenix, testified that on January 26, 2023, he conducted a pre-slab footing inspection and issued a green tag because it met minimum requirements.

Mr. Curtis conducted a “602 inspection” on May 16, 2023, which was an onsite meeting during which he issued a list of deficiencies. Mr. Curtis testified that at that time, the framing was incomplete. Many of the items on the list of deficiencies correspond with items on the Written Directive and are as follows:

-Missing portal frame opening at garage door

-Need mechanical fastening of new framing garage wall to existing block wall

-Missed nailing on shear & pony wall throughout 6” & 12”

-Renail double girder hold down east column, verify hold down on west column

-Parapets not built per detail, provide revision or build per orig. plan

-Chip uneven stem and skim coat exposed hold downs

-Missing multiple sill plate hold downs

-S-1 max control joint spacing 10’ revise with eng. or cut in control joints

-Add blocking for 2x12 due to “twisting”

On September 20, 2023, Mr. Curtis conducted another “602 inspection” in which Mr. Curtis issued an Inspector’s Notice that indicated, “Not a full list, framing incomplete.” The Inspector’s Notice set forth the following deficiencies:

-Portal frame at garage not per detail

S2 108

-Missed nailing on shear and pony wall throughout

-Hold downs for double girder not verified/added

-Parapet not built per plans-provide alternative design

-Stem chip and skim coat not complete

-Parapet at back of house addition has been partially removed and left in an unsafe condition

-S-1 control joint not per plan

Mr. Curtis testified that at a January 18, 2023 inspection with a different inspector, Respondent was instructed to submit all new plans to the City if the scope of work had changed, and Respondent did not do so. Mr. Curtis testified that no approved changes were made to the plans.

Complainant testified that Respondent made unapproved changes to the scope of work without his approval. Complainant further testified that he never denied access to Respondent, however, did request that Respondent notify him when work was to be performed. Complainant agreed with Investigator Grimm’s and Mr. Curtis’ testimony.

Ms. Garcia testified that Respondent was willing to complete its scope of work pursuant to the parties’ contract, however, Respondent cannot “work for free” and Complainant will not sign a charge order. Ms. Garcia testified that the parties’ contract entitled “Garage and Laundry Addition,” does not mention a patio. Ms. Garcia testified that the plans include a patio and the footers for the patio were installed because Complainant intended to construct one at a later date.

Ms. Garcia further testified that the original estimate included a roof tear off and installation. However, Complainant did not accept that estimate and signed a contract that did not include that scope of work.

The evidence presented at hearing established that Respondent provided an initial proposal to Complainant on August 17, 2022, that included roofing work at a cost of $17,850.00 for the following scope of work:

5.1 Roofing work

Take all necessary precautions to protect landscape and surrounding property

-Tear off existing roof to deck

-Torch will be installed (Color: White)

-GAFGLASS #75 Base to be installed

-Install with Metal Cap Nails

-Install 1 1⁄2” x 2” Z Bar up to 8” to 10” on the wall around perimeter

-Install Cant Strip around perimeter

-Install 4 Thru Wall Scuppers 6 x 16 throughout areas as needed

-Existing Roof Jacks will be removed

-New Roof Jacks will be sealed with Plastic Cement and Buff Granulated

-Roof Jacks will be painted to match

-Existing T-tops will be removed

-New T-tops will be sealed with Plastic Cement and Buff Granulated

-T-tops will be painted to match

-Haul away all debris associated with roof installation

-Inspection with authorized agent upon completion by Roofing Superintendent for quality of workmanship and requirements of Manufacturer.

*Five (5) year warranty from Socorro’s Roofing LLC on all workmanship

*All material is guaranteed to be specified. All work to be completed in a substantial workmanlike manner according to specification submitted, per standard practices. Any alteration or deviation from above specifications involving extra costs will become an extra charge over and above the estimate.

Complainant did not sign this proposal. Instead, Complainant signed a different proposal dated August 17, 2022, that included the following scope of work as it pertains to the roof:

6- Roofing

6.3 Foam and elastomeric coating $9,100.00

On March 10, 2023, Respondent sent a text message to Complainant containing a revised estimate for roof work based upon the fact that Respondent had found that roof drains were clogged and the plywood on the roof was soft. Complainant responded that was “one of the reasons I want to do a tear off.” Complainant asserted that such statement established that Complainant had contracted for the tear off and replacement of his existing roof. The Administrative Law Judge does not find Complainant’s argument persuasive. The credible evidence of record established that Complainant received two separate proposals from Respondent. One proposal included the replacement of his existing roof at a cost of $17,850.00, and was very specific in that it set forth in detail the roofing work that would be performed. The other proposal was for foam and elastomeric coating for the garage and laundry room addition at a cost of $9,100.00. Complainant chose to sign the proposal for $9,100.00, which became the parties’ contract. Therefore, the Administrative Law Judge finds, based on the evidence of record, that the replacement of the entire roof is not within the scope of the parties’ contract.

Administrative notice is taken of Respondent’s prior License record on October 3, 2023. Such prior License record reflects that Respondent’s License Number 323036 was first issued on December 21, 2018, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and one complaint that resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, Investigator Grimm found that Respondent’s work was not in conformity with the Registrar’s standards and the credible evidence of record established workmanship deficiencies in Respondent’s work. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The credible evidence of record established that Respondent did not complete the required corrective work following the Written Directive being issued. The Administrative Law Judge concludes based on the evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Number 323036 for a period of five (5) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, October 5, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

Skill Set, Inc.

DBA: Skill Set Remodeling

[email redacted]

Dustin Matz

[email redacted]

Jack Grimm

[email redacted]

By: OAH Staff